Holding

Bail applications must disclose all earlier bail applications, their outcomes, and any pending proceedings; failure to do so constitutes suppression of material facts and defeats the applicant's claim for relief.

Summary

Kusha Duruka, accused under the NDPS Act, filed multiple bail applications after his arrest on 3 February 2022. The first bail request was rejected by the Sessions Court, and a subsequent application before the Odisha High Court was also dismissed, while his co‑accused was granted bail. During the pendency of a Special Leave Petition before the Supreme Court, Duruka filed a second bail application before the High Court, which was granted but failed to disclose that it was a second application and that a SLP was pending. The Supreme Court held that bail applications must disclose all earlier bail applications, their orders, and any pending proceedings, emphasizing that suppression of material facts undermines the administration of justice. It issued detailed guidelines for mandatory disclosures in bail applications and dismissed the appeal as infructuous, imposing a modest cost on the appellant.

Issues considered

The mandatory particulars that must be disclosed in a bail application, including details of earlier bail applications and their orders.
The legal effect of failing to disclose prior bail applications or pending proceedings in a bail application.
Whether suppression of material facts in bail applications warrants denial of relief or other sanctions.

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii)(C)

Subjects

Administration of justiceContempt of courtFabricated documentJustice delivery systemPersonal gainFalsehoodMisrepresentationSuppression of material factsMaxim supressio veriBail applicationSecond bail applicationStanding OrderCost

Judgment

[2024] 1 S.C.R. 604 : 2024 INSC 46

Kusha Duruka
v.
The State of Odisha
(Criminal Appeal No.303 of 2024)
19 January 2024
[Vikram Nath and Rajesh Bindal,* JJ.]

Issue for Consideration

Matter pertains to the prerequisites to be mandatorily mentioned in
the application filed for grant of bail; and effect of non-mentioning of
details of previous bail applications and order in all bail applications.

Headnotes

Bail – Bail applications – Prerequisites to be mandatorily
mentioned in the application filed for grant of bail:

Held: Details and copies of orders passed in the earlier bail
applications filed by the petitioner which have been already decided
– Details of any bail application filed by the petitioner, pending in
any court, higher or lower court, and if none is pending, a clear
statement to that effect – All bail applications filed by the different
accused in the same FIR to be listed before the same Judge –
Registry of the court to also annex a report generated from the
system about decided or pending bail applications in the case in
question – Investigating Officer assisting the State Counsel in court
duty bound to apprise him of the orders, if any, passed by the court
with reference to different bail applications or other proceedings in
the same crime case – Counsel appearing for the parties to conduct
themselves truly like officers of the Court – These suggestions are
to streamline the proceedings and avoid anomalies with reference
to the bail applications. [Paras 20, 21]

Bail – Grant of bail pending trial – Non-mentioning of details of
previous bail applications and order in bail applications – On
facts, allegations under the NDPS Act against the appellant and
co-accused – Rejection of bail applications by the Sessions

* Author
[2024] 1 S.C.R. 605

Kusha Duruka v. The State of Odisha

Court – However, the High Court allowed the co-accused’s
bail application whereas appellant’s bail application was
dismissed – Both the orders pronounced by different judges
of the High Court– Thereagainst, the appellant filed SLP and
notice was issued – Meanwhile, the second bail application
filed by the appellant was allowed by the judge of the High
Court who had granted the bail to the co-accussed, however
in the said order, there was no mention of the fact that it was
the second bail application filed by the appellant nor regarding
the pendency of the SLP before this Court, in which notice
had already been issued - Propriety:

Held: In the list of dates and events as also in the body of the bail
application, the appellant did not mention regarding disposal of his
earlier bail application by the High Court and also filing of the SLP
in this Court – During the pendency of the matter before this Court
a fresh bail application was filed not only before the trial court but
even before the High Court – High Court even granted bail to the
appellant – In the bail application filed before the High Court, it
was not mentioned that the same was second bail application filed
by the appellant – This Court cannot comment on the contents of
the bail application filed before the Sessions Judge as the copy
thereof is not available on record here – Though considering the
conduct of the appellant, one of the option available was to cancel
his bail, however, such an extreme step is not taken – Appeal is
dismissed as infructuous and the cost of ₹10,000/-, imposed on
the appellant. [Paras 18, 22, 23]

Administration of justice – Justice delivery system –
Suppression of material facts – Effect:

Held: Litigant, who attempts to pollute the stream of justice with
falsehood, misrepresentation and suppression of facts, is not
entitled to any relief, interim or final – Suppression of material
facts from the court of law, is actually playing fraud with the court
– Maxim supressio veri, expression faisi, i.e. suppression of the
truth is equivalent to the expression of falsehood, gets attracted
– Maxims. [Para 7]
606 [2024] 1 S.C.R.

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Case Law Cited
Pradhani Jani v. The State of Odisha Criminal Appeal
No.1503/2023 decided on 15.05.2023 – relied on.
Chandra Shashi v. Anil Kumar Verma [1994] 5 Suppl.
SCR 465:(1995) 1 SCC 421; K.D. Sharma Vs. Steel
Authority of India Limited and others [2008] 10 SCR
454:(2008) 12 SCC 481; Dalip Singh v. State of Uttar
Pradesh and others [2009] 16 SCR 111:(2010) 2 SCC
114; Moti Lal Songara Vs. Prem Prakash @ Pappu
and another [2013] 6 SCR 496:(2013) 9 SCC 199;
Saumya Chaurasia v. Directorate of Enforcement 2023
INSC 1073; Pradip Sahu v. The State of Assam Special
Leave Petition (Criminal) No. 4876 of 2022 dated
24.08.2023 – referred to.

List of Acts
Code of Criminal Procedure, 1973; Narcotic Drugs and Psychotropic
Substances Act, 1985.

List of Keywords
Administration of justice; Contempt of court; Fabricated
document; Justice delivery system; Personal gain; Falsehood;
Misrepresentation; Suppression of material facts; Maxim supressio
veri, Expression faisi; Degradation of moral values; Education
system; Bail application; Unqualified apology; Deprecation; Second
bail application; Standing Order; Stamp reporting section; Cost.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.303
of 2024
From the Judgment and Order dated 06.03.2023 of the High Court
of Orissa at Cuttack in BLAPL No.1855 of 2022.
Appearances for Parties
Haraprasad Sahu, Sushant Kumar Mallik, Pranaya Kumar Mohapatra,
Advs. for the Appellant.
Ashok Parija, AG, Basant R., Sr. Adv., Prakash Ranjan Nayak,
Balaram Nayak, Sibashish Misra, Advs. for the Respondent.
[2024] 1 S.C.R. 607

Kusha Duruka v. The State of Odisha

Judgment / Order of the Supreme Court

Judgment
Rajesh Bindal, J.
Leave granted.
2. This is another case in which an effort has been made to pollute the
stream of administration of justice.
3. About three decades ago, this Court in Chandra Shashi v. Anil
Kumar Verma1 was faced with a situation where an attempt was
made to deceive the Court and interfere with the administration of
justice. The litigant was held to be guilty of contempt of court. It was
a case in which husband had filed fabricated document to oppose
the prayer of his wife seeking transfer of matrimonial proceedings.
Finding him guilty of contempt of court, he was sentenced to two
weeks’ imprisonment by this Court. This Court observed as under:
“1. The stream of administration of justice has to remain
unpolluted so that purity of court’s atmosphere may give
vitality to all the organs of the State. Polluters of judicial
firmament are, therefore, required to be well taken care of
to maintain the sublimity of court’s environment; so also to
enable it to administer justice fairly and to the satisfaction
of all concerned.
2. Anyone who takes recourse to fraud, deflects the course
of judicial proceedings; or if anything is done with oblique
motive, the same interferes with the administration of
justice. Such persons are required to be properly dealt
with, not only to punish them for the wrong done, but
also to deter others from indulging in similar acts which
shake the faith of people in the system of administration
of justice.
* * *
14. The legal position thus is that if the publication be with
intent to deceive the court or one made with an intention to
defraud, the same would be contempt, as it would interfere

1 (1995) 1 SCC 421
608 [2024] 1 S.C.R.

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with administration of justice. It would, in any case, tend
to interfere with the same. This would definitely be so if
a fabricated documents is filed with the aforesaid mens
rea. In the case at hand the fabricated document was
apparently to deceive the court; the intention to defraud
is writ large. Anil Kumar is, therefore, guilty of contempt.”
4. In K.D. Sharma Vs. Steel Authority of India Limited and others2
it was observed by this Court:
“39. If the primary object as highlighted in Kensington
Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB
257 : 116 LT 136 (CA) is kept in mind, an applicant who
does not come with candid facts and “clean breast” cannot
hold a writ of the court with “soiled hands”. Suppression
or concealment of material facts is not an advocacy. It is a
jugglery, manipulation, manoeuvring or misrepresentation,
which has no place in equitable and prerogative jurisdiction.
If the applicant does not disclose all the material facts
fairly and truly but states them in a distorted manner and
misleads the court, the court has inherent power in order
to protect itself and to prevent an abuse of its process to
discharge the rule nisi and refuse to proceed further with
the examination of the case on merits. If the court does
not reject the petition on that ground, the court would be
failing in its duty. In fact, such an applicant requires to be
dealt with for contempt of court for abusing the process
of the court.”
[emphasis supplied]
5. In Dalip Singh v. State of Uttar Pradesh and others3, this Court
noticed the progressive decline in the values of life and the conduct
of the new creed of litigants, who are far away from truth. It was
observed as under:
“1. For many centuries Indian society cherished two
basic values of life i.e. “satya” (truth) and “ahinsa” (non-
violence). Mahavir, Gautam Buddha and Mahatma Gandhi

2 (2008) 12 SCC 481
3 (2010) 2 SCC 114
[2024] 1 S.C.R. 609

Kusha Duruka v. The State of Odisha

guided the people to ingrain these values in their daily life.
Truth constituted an integral part of the justice- delivery
system which was in vogue in the pre-Independence
era and the people used to feel proud to tell truth in the
courts irrespective of the consequences. However, post-
Independence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos
and the quest for personal gain has become so intense
that those involved in litigation do not hesitate to take
shelter of falsehood, misrepresentation and suppression
of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has
cropped up. Those who belong to this creed do not have
any respect for truth. They shamelessly resort to falsehood
and unethical means for achieving their goals. In order to
meet the challenge posed by this new creed of litigants,
the courts have, from time to time, evolved new rules and
it is now well established that a litigant, who attempts
to pollute the stream of justice or who touches the pure
fountain of justice with tainted hands, is not entitled to any
relief, interim or final.”
(emphasis supplied)
6. In Moti Lal Songara Vs. Prem Prakash @ Pappu and another4, this
Court, considering the issue regarding concealment of facts before
the Court, observed that “court is not a laboratory where children
come to play”, and opined as under:
“19. The second limb of the submission is whether in the
obtaining factual matrix, the order passed by the High
Court discharging the accused-respondent is justified in
law. We have clearly stated that though the respondent was
fully aware about the fact that charges had been framed
against him by the learned trial Judge, yet he did not bring
the same to the notice of the revisional court hearing the
revision against the order taking cognizance. It is a clear
case of suppression. It was within the special knowledge

4 (2013) 9 SCC 199
610 [2024] 1 S.C.R.

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of the accused. Any one who takes recourse to method of
suppression in a court of law, is, in actuality, playing fraud
with the court, and the maxim supressio veri, expression
faisi , i.e., suppression of the truth is equivalent to the
expression of falsehood, gets attracted. We are compelled
to say so as there has been a calculated concealment
of the fact before the revisional court. It can be stated
with certitude that the accused- respondent tried to gain
advantage by such factual suppression. The fraudulent
intention is writ large. In fact, he has shown his courage
of ignorance and tried to play possum.
20. The High Court, as we have seen, applied the principle
“when infrastructure collapses, the superstructure is
bound to collapse”. However, as the order has been
obtained by practising fraud and suppressing material fact
before a court of law to gain advantage, the said order
cannot be allowed to stand.”
(emphasis supplied)
7. It was held in the judgments referred to above that one of the two
cherished basic values by Indian society for centuries is “satya”
(truth) and the same has been put under the carpet by the petitioner.
Truth constituted an integral part of the justice-delivery system in
the pre-Independence era, however, post-Independence period has
seen drastic changes in our value system. The materialism has
overshadowed the old ethos and the quest for personal gain has
become so intense that those involved in litigation do not hesitate to
take shelter of falsehood, misrepresentation and suppression of facts
in the court proceedings. In the last 40 years, the values have gone
down and now a litigants can go to any extent to mislead the court.
They have no respect for the truth. The principle has been evolved
to meet the challenges posed by this new breed of litigants. Now it
is well settled that a litigant, who attempts to pollute the stream of
justice or who touches the pure fountain of justice with tainted hands,
is not entitled to any relief, interim or final. Suppression of material
facts from the court of law, is actually playing fraud with the court.
The maxim supressio veri, expression faisi, i.e. suppression of the
truth is equivalent to the expression of falsehood, gets attracted.
[2024] 1 S.C.R. 611

Kusha Duruka v. The State of Odisha

Its nothing but degradation of moral values in the society, may be
because of our education system. Now we are more happy to hear
anything except truth; read anything except truth; speak anything
except truth and believe anything except truth. Someone rightly
said that `Lies are very sweet, while truth is bitter, that’s why most
people prefer telling lies.’
8. In a recent matter, this Court again came across a litigant who had
tried to overreach the Court by concealing material facts in Saumya
Chaurasia v. Directorate of Enforcement5. It was a case where
the appellant before this Court had challenged the order passed
by the High Court6 rejecting his bail application. He was accused
of committing various crimes under the Indian Penal Code and the
Prevention of Money Laundering Act, 2002. His bail application was
rejected by the High Court on 23.06.2023. In the pleadings before
this Court, it was mentioned that the High Court had committed gross
error in not considering the chargesheet dated 08.06.2023 and the
cognizance order dated 16.06.2023, which clearly suggested that
there was error apparent on the fact of it. The fact which was available
on record was that an order in the bail application was reserved
by the High Court on 17.04.2023 and pronounced on 23.06.2023.
Having some suspicion, this Court directed the appellant to file an
affidavit to clarify the aforesaid position. There was no specific reply
given to the aforesaid query to the Court. Rather vague statements
were made. Considering the facts available, this Court observed that
there was a bold attempt by and on behalf of the appellant therein
to misrepresent the facts for challenging the order impugned therein,
regarding the conduct of the parties and the counsel, this Court made
the following observations:
“14. It cannot be gainsaid that every party approaching the
court seeking justice is expected to make full and correct
disclosure of material facts and that every advocate being
an officer of the court, though appearing for a particular
party, is expected to assist the court fairly in carrying out
its function to administer the justice. It hardly needs to be

5 2023 INSC 1073
6 High Court of Chhattisgarh at Bilaspur in Miscellaneous Crl. Case No.1258/2023
612 [2024] 1 S.C.R.

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emphasized that a very high standard of professionalism
and legal acumen is expected from the advocates
particularly designated Senior advocates appearing in the
highest court of the country so that their professionalism
may be followed and emulated by the advocates practicing
in the High Courts and the District Courts. Though it is
true that the advocates would settle the pleadings and
argue in the courts on instructions given by their clients,
however their duty to diligently verify the facts from the
record of the case, using their legal acumen for which
they are engaged, cannot be obliviated.”
(emphasis supplied)
8.1. Finally, this Court dismissed the appeal with costs of ₹1,00,000/-.
9. In Pradip Sahu v. The State of Assam7 the accused who was found
to be guilty of concealing material facts from the court and against
him the High Court8 had directed for taking appropriate legal action,
had challenged the order passed by the High Court before this Court.
In the aforesaid case, first bail application filed by the appellant there
was dismissed by the High Court9, thereafter he moved second bail
application before the High Court in which notice was issued on
30.11.2021. During the pendency of the aforesaid application before
the High Court, the appellant therein moved fresh bail application
before the Trial Court on 01.12.2021, which was granted on the same
day. The aforesaid facts came to the notice of the High Court on
08.12.2021 when a report of the Registrar (Judicial) was received,
who was directed to conduct the enquiry in the matter. However, on
an apology tendered by the appellant therein and also considering
the facts as stated that he belonged to Tea Tribe community and his
brother, a cycle mechanic, who was also pursuing the case, did not
appreciate the intricacy of the law. As a result of which, the mistake
occurred. This Court, having regard to the unqualified apology
tendered by the appellant therein, had set aside the order passed
by the High Court to file FIR/complaint against the appellant therein.

7 Special Leave Petition (Criminal) No. 4876 of 2022, decided by this Court on 24.08.2023
8 Gauhati High Court
9 On 11.11.2021
[2024] 1 S.C.R. 613

Kusha Duruka v. The State of Odisha

10. May be in the facts of the aforesaid case, this Court had accepted
unconditional apology tendered by the appellant therein and the
given facts situation accepted his apology but it is established that
there is a consistent effort by the litigants to misrepresent the Court
wherever they can.

11. The prayer in the present appeal is for grant of bail pending trial. The
appellant claimed that he is in custody since 03.02.2022 in connection
with crime10 registered under Section 20(b)(ii)(C) of the Narcotic Drugs
and Psychotropic Substances Act, 1985. The allegation in the FIR
is that the appellant and the co-accused Gangesh Kumar Thakur
@ Gangesh Thakur were in exclusive and conscious possession of
23.8 kg Ganja and were transporting the same.

12. The appellant and his co-accused Gangesh Kumar Thakur @
Gangesh Thakur filed an application for release on bail pending
trial before the Sessions Judge-cum-Special Judge, Malkangiri
immediately after their arrest on 03.02.2022. The same was rejected
vide order dated 04.02.2022. At that stage even the chargesheet
had not been filed.

12.1 Being aggrieved against the order of rejection of the bail
application by the Sessions Judge, the appellant filed first bail
application11 before High Court. While the same was pending the
co-accused Gangesh Thakur also filed bail application12 before
the High Court. The High Court vide order dated 17.01.2023
allowed the bail application filed by Gangesh Kumar Thakur
@ Gangesh Thakur. However, the bail application filed by the
appellant was dismissed vide impugned order dated 06.03.2023.
Aggrieved against the same, the appellant filed the SLP13 before
this Court. Notice in the same was issued on 22.09.2023. When
the matter was listed on 08.11.2023, learned counsel for the
State sought time to file counter affidavit. On 06.12.2023, the

10 FIR No. 29 dated 03.02.2022, at P.S. Orkel, District Malkaganj, Odisha
11 BLAPL No. 1855 of 2022
12 BLAPL NO. 11709 of 2022
13 Special Leave Petition (Criminal) No. 12301 of 2023
614 [2024] 1 S.C.R.

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learned counsel for the appellant pointed out that during the
pendency of the present matter before this Court, the High Court
vide order dated 11.10.2023 had granted bail to the appellant.
As he did not have hard copy of the order passed by the High
Court, he placed before us a soft copy of the said order through
his mobile phone. On a reading of the aforesaid order, this Court
found that the same neither mentioned the fact that it was the
second bail application14 filed by the appellant nor pendency
of the SLP before this Court, in which notice had already been
issued. Taking the matter seriously and deprecating such a
practice this Court passed the following order on 06.12.2023:

“This petition has been filed assailing the correctness of
order dated 6th March, 2023 passed by the High Court
of Orissa at Cuttack in BLAPL No. 1855 of 2022, ‘Kusha
Duruka Versus State of Odisha’ whereby the prayer for
bail was rejected. Notice was issued by this Court on 22nd
September, 2023.

Today the learned counsel for the petitioner informs this
Court that during the pendency of this petition, the High
Court has granted bail to the petitioner on 11th October,
2023. He has placed before us a soft copy of the said
order through his mobile, according to which BLAPL No.
10860 of 2023 was allowed apparently on the ground of
parity extended to another co-accused.

From reading of the said order, we find that it neither
mentions that it was the second bail application filed by
the petitioner before the High Court nor does it reflects
any reference to the petition pending before this Court in
which notice had already been issued in September, 2023.

We seriously deprecate such practice by the litigant and
the counsel.

14 BLAPL No. 10860 of 2023
[2024] 1 S.C.R. 615

Kusha Duruka v. The State of Odisha

We accordingly, direct that original record of the said bail
application, allowed by the High Court on 11th October,
2023, be called for forthwith.
We further direct that this order be communicated to the
Hon’ble Chief Justice as also the Registrar of the High Court
of Orissa forthwith (today itself) and the aforementioned
file of BLAPL No. 10860 of 2023 titled ‘Kusha Duruka
Versus Versus State of Odisha’ be immediately sealed
and thereafter be forwarded to this Court.
We also request the Hon’ble the Chief Justice to obtain
comments of the learned Judge as to whether he was
apprised of the aforesaid two facts as recorded earlier in
this order regarding the bail application being the second
bail application and the secondly the pendency of the
present petition.
The State of Odisha will also file its comments as to
whether the public prosecutor appearing for the State of
Odisha pointed out such facts or not.
The report shall be submitted by the Secretary, Department
of Law and Justice of the State of Odisha as also by the
Joint Secretary or the Additional Secretary (Law) attached
to the High Court.
List this matter again on 13th December, 2023.”
13. In terms of the aforesaid order, this Court received the original record
pertaining to second bail application filed by the appellant in which
he was granted bail by the High Court vide order dated 11.10.2023;
a report dated 08.12.2023 from the High Court along with a note
from the Hon’ble Judge who had dealt with the bail application filed
by the appellant and passed the order on 11.10.2023; affidavit of
Special Secretary, Home Department, Government of Odisha dated
11.12.2023 and affidavit and report of Principal Secretary, Law
Department, Government of Odisha dated 12.12.2023.
14. Before we deal with the matter, we deem it appropriate to note down
the dates and events in a tabular form.
616 [2024] 1 S.C.R.

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DATE EVENTS
03.02.2022 FIR No.29 dated 03.02.2022 was registered at Police
Station Orkel, District Malkangiri, Odisha, under Section
20(b)(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
03.02.2022 The appellant as well as co-accused were arrested.
04.02.2022 The first bail application filed by the appellant as well
as the co-accused was rejected by the Sessions Judge-
cum-Special Judge, Malkangiri (Special G.R. Case
No.38/2022).
The appellant approached the High Court for grant of
bail by filing bail application bearing BLAPL No. 1855
of 2022.
The co-accused Gangesh Kumar Thakur @ Gangesh
Thakur approached the High Court for grant of bail by
filing bail application bearing BLAPL No.11709 of 2022.
As is evident from the records available before this Court,
bail application filed by the appellant was assigned to
Judge ‘A’15.
During the pendency of the bail application filed by the
appellant, the bail application filed by the co-accused
Gangesh Kumar Thakur was listed before Judge ‘B’9.
17.01.2023 The bail application filed by the co-accused Gangesh
Kumar Thakur @ Gangesh Thakur was allowed by Judge
‘B’; The order does not suggest that the State Counsel
had pointed before the court that there is another bail
application filed by the co-accused (the appellant)
pending consideration before the court.
06.03.2023 The bail application filed by the appellant was rejected
by Judge ‘A’; the High Court had specifically recorded in
the order that the co-accused Gangesh Kumar Thakur
@ Gangesh Thakur had been released vide order dated
17.01.2023.
21.07.2023 Aggrieved against the order rejecting the bail application
filed by the appellant, SLP was filed before this Court.

15 We are consciously not mentioning the name of the Hon’ble Judge
[2024] 1 S.C.R. 617

Kusha Duruka v. The State of Odisha

15.09.2023 During the pendency of the matter before this Court,
second bail application filed by the appellant was
rejected by the Sessions Judge-cum-Special Judge,
Malkangiri.
The argument raised by the appellant that the co-
accused has already been granted the bail, is noticed
in the order. It does not record the fact that a petition
filed by the appellant seeking bail is pending before
this Court.
21.09.2023 While the matter was pending before this Court, the
appellant filed second bail application before the High
Court and the same was not disclosed before this Court.
22.09.2023 Notice in the SLP was issued to the respondent.
11.10.2023 During pendency of the matter before this Court Judge
‘B’ granted bail to the appellant.
08.11.2023 Learned counsel for the State appeared and sought
time for filing counter affidavit to the SLP. Though the
High Court had already granted bail to the appellant but
still it was not pointed out when the matter was taken
up by this Court.
06.12.2023 Learned counsel for the appellant pointed out before
this Court that the appellant had already been released
by the High Court. This Court called for explanation and
the record of the case from the High Court.
15. In the Affidavit dated 11.12.2023 filed by the Principal Secretary, Law
Department, Govt. of Odisha, while narrating the facts of the case,
it was stated that the learned counsel appearing for the State in the
High Court did not have the knowledge of the fact that the first bail
application filed by the appellant was rejected on 06.03.2023 by
the High Court and also regarding filing of the SLP by the petitioner
before this Court.
15.1 The contents of para of the aforesaid affidavit are extracted
below:
“It is submitted that the State Counsel before the
Hon’ble High Court of Orissa was not aware of the
fact that, earlier BLAPL No.1855/2022 was rejected
618 [2024] 1 S.C.R.

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vide order dated 06.03.2023 as well as the fact of
filing of S.L.P.(Crl.)No.12301/2023. A copy of report
of the State Counsel is as ANNEXURE-A”
15.2 Along with the affidavit a report from the State Counsel was
also annexed. It was mentioned therein that in second bail
application though the appellant had disclosed about filing of
his first bail application, he had not disclosed any fact regarding
pendency of the SLP before this Court. It was further mentioned
that in the list of dates the factum of rejection of earlier bail
application or filing of the SLP was not mentioned. Even at
the time of hearing this fact was not disclosed. Learned State
Counsel did not have any instructions from the Inspector
Incharge regarding pendency of the present petition before
this Court.
15.3 To similar effect is the affidavit filed by the Special Secretary,
Home Department, Govt. of Odisha.
16. In compliance to the order dated 06.12.2023 passed by this Court,
a report has been received from the High Court. The comments of
Judge ‘B’, as requested, were annexed with the report and original
file of second bail application of appellant was also received from the
High Court. It is mentioned therein that at the time of hearing of the
second bail application, the court was not apprised of the factum of
pendency of the SLP before this Court, in which notice had already
been issued on 22.09.2023.
16.1 A copy of Standing Order No.2 of 2023, in partial modification
of earlier Standing Order No.1 of 2020 issued by the High
Court on 21.05.2023, was annexed with the report. It was
issued in pursuance to the observation made by this Court in
Pradhani Jani v. The State of Odisha16. The Standing Order
was issued with reference to the listing of the bail applications
under Sections 438 and 439 Cr.P.C. Para 2 of the Standing
Order with reference to the bail applications under Section
439 Cr.P.C. is extracted below:

16 Criminal Appeal No.1503/2023 decided on 15.05.2023
[2024] 1 S.C.R. 619

Kusha Duruka v. The State of Odisha

“2. The subsequent bail applications under section
439 Cr.P.C. including applications for interim bail
shall be listed before the Hon’ble Judge who, at the
earliest, decided any of the earlier bail applications
under section 439 Cr.P.C. arising out of the same
FIR (decided on merit or disposed of as withdrawn/
not pressed). In the event the Hon’ble Judge is not
available on account of superannuation, transfer etc.
or recuses, the said application shall be listed before
the Hon’ble Judge who next disposed of any of those
bail applications, and so on. If none of the Hon’ble
Judges who decided the earlier bail applications is
available, the application shall be listed before the
regular Bench as per roster.”
17. In substance, it was directed that the Stamp Reporting Section
will verify in case any bail application arising out of the same FIR
has been disposed of earlier. The Stamp Reporting Section shall
furnish complete details. The subsequent bail applications are to be
listed before the same Judge. However, in case of non-availability
or superannuation of the that Judge, alternate system has been
provided. It is further directed that while listing the subsequent bail
application, final order(s) of earlier bail application(s) arising out of
the same FIR shall be tagged. To put the record straight, the order
passed by this Court in Pradhani Jani’s case (supra) is extracted
hereinbelow:
“3. The perusal of the paper books would reveal that various
applications filed by various accused have been entertained
by different learned Single Judges of the same High Court.
In many of the High Courts, the practice followed is that
the applications arising out of the same FIR should be
placed before one Judge. However, it appears that it is
not the practice in Orissa High Court. In the present case,
we have come across orders passed by at least three
different Judges in the applications of various accused
arising out of same FIR.
4. Such a practice leads to anomalous situation. Certain
accused are granted bail whereas certain accused for
the very same crime having similar role are refused bail.
620 [2024] 1 S.C.R.

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5. We, therefore, quash and set aside the impugned order
dated 31.01.2023 and remand the matter back to the High
Court. The High Court is requested to consider the effect
of the orders passed by the other coordinate Benches
and pass orders afresh. The same shall be done within a
period of one month from today.
6. The Registrar (Judicial) of the Registry of this Court is
directed to forward a copy of this order to the Registrar
General of the Orissa High Court, who is requested to take
note of the aforesaid and consider passing appropriate
order so that contrary orders in the same crime are
avoided.”
18. A perusal of the paper book in second bail application shows that
there is a report annexed by the Registry in the matter. It mentioned
about the earlier two bail applications filed in the FIR in-question.
The first bail application filed by the appellant was disposed of on
06.03.2023. Bail application filed by the co-accused Gangesh Kumar
Thakur was disposed of on 17.01.2023. The next one was the second
bail application filed by the appellant. Though Standing Order No.2 of
2023 directed the Registry to annex all the orders passed in the earlier
bail applications by different accused in the same FIR, however, the
order passed by the High Court in the case of the appellant, rejecting
his earlier bail application, does not form part of the bail application
before the High Court. Only the order dated 17.01.2023 passed in
the bail application, filed by the co-accused Gangesh Kumar Thakur
was annexed. Further, in the list of dates and events, the appellant
did not mention regarding disposal of his earlier bail application by
the High Court and also filing of the SLP in this Court. Though, just
below the name of the parties, the appellant had mentioned the
number of earlier bail application filed by him. Even in the body of
the bail application, the appellant has conspicuously remained silent
about the dismissal of his earlier bail application by the High Court
and filing of the SLP before this Court. During the pendency of the
matter before this court a fresh bail application was filed not only
before the Trial Court but even before the High Court. The High Court
even granted bail to the appellant. In the bail application filed before
the High Court, it was not mentioned that the same was second bail
application filed by the appellant. This Court cannot comment on the
contents of the bail application filed before the Sessions Judge as
the copy thereof is not available on record here.
[2024] 1 S.C.R. 621

Kusha Duruka v. The State of Odisha

19. It is further evident from the order dated 17.01.2023 vide which bail
application, BLAPL NO.11709 of 2022 of the co-accused Gangesh
Kumar Thakur was allowed by the High Court by Judge ‘B’. Learned
State Counsel did not point out the factum of pendency of another
bail application filed by the co-accused arising out of the same FIR
at that stage. The concerned investigating officer must be aware of
this fact but had not pointed out the same before the court.
20. In our opinion, to avoid any confusion in future it would be appropriate
to mandatorily mention in the application(s) filed for grant of bail:
(1) Details and copies of order(s) passed in the earlier bail
application(s) filed by the petitioner which have been already
decided.
(2) Details of any bail application(s) filed by the petitioner, which
is pending either in any court, below the court in question or
the higher court, and if none is pending, a clear statement to
that effect has to be made.
This court has already directed vide order passed in Pradhani Jani’s
case (supra) that all bail applications filed by the different accused
in the same FIR should be listed before the same Judge except in
cases where the Judge has superannuated or has been transferred
or otherwise incapacitated to hear the matter. The system needs to
be followed meticulously to avoid any discrepancies in the orders.
In case it is mentioned on the top of the bail application or any other
place which is clearly visible, that the application for bail is either
first, second or third and so on, so that it is convenient for the court
to appreciate the arguments in that light. If this fact is mentioned
in the order, it will enable the next higher court to appreciate the
arguments in that light.
(3) The registry of the court should also annex a report generated
from the system about decided or pending bail application(s)
in the crime case in question. The same system needs to be
followed even in the case of private complaints as all cases
filed in the trial courts are assigned specific numbers (CNR
No.), even if no FIR number is there.
(4) It should be the duty of the Investigating Officer/any officer
assisting the State Counsel in court to apprise him of the
order(s), if any, passed by the court with reference to different
622 [2024] 1 S.C.R.

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bail applications or other proceedings in the same crime case.
And the counsel appearing for the parties have to conduct
themselves truly like officers of the Court.
21. Our suggestions are with a view to streamline the proceedings and
avoid anomalies with reference to the bail applications being filed in
the cases pending trial and even for suspension of sentence.
22. Though considering the conduct of the petitioner, one of the option
available was to cancel his bail, however, we do not propose to take
such an extreme step in the case in hand. However, this can be the
option exercised by the Court if the facts of the case so demand
seeing the conduct of the parties.
23. The present appeal is, accordingly, dismissed as infructuous.
However, still we deem it appropriate to burden the appellant with
a token cost of ₹10,000/-, which shall be deposited by him with
Mediation and Conciliation Centre, attached to Orissa High Court,
within a period of eight weeks from today. Within two weeks thereafter,
proof of deposit be furnished in this Court.
24. A copy of the order be sent to the Registrars General of all the High
Courts to be placed before the Chief Justices for correction of the
system, wherever required, as this Court comes across similar issues
from different High Courts.
25. The original record received from the High Court be sent back.

Headnotes prepared by: Nidhi Jain Result of the case: Appeal dismissed.